Replies

But there should be a way to sue them for it in extreme cases like this.

It's called Prosecutorial Abuse. And it never gets enforced. That's why there needs to be a statute forcing the state to pay attorney's fees to someone that they accused and were wrong about. And by wrong about, that means a not guilty verdict, regardless of the prevailing opinion in news or why the verdict was returned, technicalities or not. A uniform standard like this is the only way that the state will be brought to heel for abuses. Anything short is too easy to weasel out of. You can't set up a law that only allows lawsuits in 'extreme cases' because that's a vague term. Once that law is in effect, then there won't be any such thing as extreme cases anymore.

Everybody seems really gung ho to put in a loser pays system for civil law; I don't see any reason why it shouldn't work the same with criminal law.

You would have prosecutors afraid to file about 90% of charges because the "might" lose. There is no way you can force the state to reimburse defendants in every dismissed or not guilty case. Maybe there should be an automatic review to determine if there was a basis for the charges, or if they were dropped as soon as it was determined there was no basis. In this case it is painfully obvious that there was no rape, therefore should not have been charges, but, do you want the state of California to reimburse OJ, or Michael Jackson? The thought is a nice one, but in the broad spectrum, unrealistic.

And by wrong about, that means a not guilty verdict, regardless of the prevailing opinion in news or why the verdict was returned, technicalities or not.

Nice theory, but there are some major problems with it. Among other things, since defendants generally do not have the same discovery requirements as prosecutors, defendants may decide to withhold certain exculpatory evidence until trial. A prosecutor may have a case that is absolutely rock-solid according to all the information he has access to, and yet have it undermined by evidence he couldn't have known anything about.

At present, defendants generally have an incentive to let reasonable prosecutors know of such evidence in the hopes that the prosecutor will save everyone's time and drop the case. If defendants could be assured that their costs would be reimbursed regardless they might feel less incentive, especially since holding back could slightly increase their chances for acquittal.

I really don't see any way of avoiding moral hazards in this sort of loser-pays scenario. I also think there needs to be separation of the issues of whether (1) the defendant deserves some reimbursement, or (2) the prosecutor deserves to be penalized personally. I would suggest that setting up clear standards to allow a prosecutor to be personally sued for a defendant's legal costs in the event that the defendant can prove that no reasonable prosecutor could have believed beyond a reasonable doubt that the defendant was guilty of the specific named offense(s) and that he could prove it.